Opinion
January 19, 1993
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is affirmed.
The defendant claims for the first time on appeal that his wife lacked actual or apparent authority to permit the police to enter the basement area of his store, where a videotaped record of the incident resulting in his conviction was found. This issue is not preserved for appellate review (People v. Martin, 50 N.Y.2d 1029, 1031; see also, People v. Tutt, 38 N.Y.2d 1011, 1013; People v Rondan, 116 A.D.2d 750, 752).
The defendant also failed to preserve his claim that the evidence was legally insufficient to support his conviction (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245, 248-252). In any event, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish his guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
Any error in the court's failure to instruct the jury on the meaning of "serious physical injury" was harmless when the charge is construed as a whole. Finally, the sentence was not harsh or excessive under the facts of the case. Rosenblatt, J.P., Ritter, Copertino and Pizzuto, JJ., concur.